Andrew Nathanson has a broad litigation practice with a focus on complex commercial litigation and white-collar crime. Andrew has been recognised as leading litigator in publications including Chambers Global, Benchmark Canada, Lexpert and Best Lawyers, with commentators highlighting his “meticulous” preparation and problem-solving skills. In 2014, Benchmark Canada ranked Andrew as a national “litigation star” for white collar crime.
Andrew’s representations in corporate and commercial litigation matters have included BHP Billiton, TELUS, Chrysler Canada, Western Forest Products, KPMG and Talisman Energy.
Corporate and Commercial Litigation
Andrew has acted for corporations, directors and shareholders in shareholders' disputes, oppression claims, and proxy contests, as well as in commercial disputes more broadly. Andrew has particular experience in the mining, hospitality and entertainment industries.
In 2010 and 2011, Andrew was co-counsel for Lions Gate Entertainment in one of the most prominent corporate cases in BC in recent years. Lions Gate successfully defended claims brought by the Icahn Group, who alleged that Lions Gate engaged in oppression and improper defensive tactics to defeat its hostile takeover bid and proxy contest seeking control of Lions Gate, a leading Hollywood motion picture and television studio. The case, which featured parallel proceedings before the BC Supreme Court, the BC Securities Commission and both state and federal courts in New York, was legally significant for its affirmation that where there is a hostile bid for control, a corporation's directors may, consistent with their fiduciary duties, take measures to resist the bidder where they reasonably conclude that it is in the best interests of the corporation to do so. This has long been a controversial question in Canadian corporate law.
Many of Andrew's commercial cases involve multi-jurisdictional disputes. He is an honorary member of the UK's Commercial Bar Association (COMBAR).
White Collar Crime
In the area of white-collar crime, Andrew has acted for both the Crown and defence, including on a number of high profile matters. He has particular experience in assisting corporations and individuals in responding to criminal and regulatory investigations, in some cases avoiding charges altogether. In 2013, Andrew, along with others from Fasken Martineau, was counsel in what was described as one of the most complex occupational health and safety investigations in WorkSafe B.C.’s history. Ultimately, no charges were laid. In what is thought to be the first time in Canada a common law privilege has been recognised for HIV-related health records, Andrew successfully obtained an exemption from a production order in an aggravated sexual assault investigation.
Andrew has been counsel in significant criminal and constitutional cases involving:
- Free speech during elections (R. v. Bryan 2007 SCC 12);
- The right of drug addicts to access harm-reduction based health services (Canada (Attorney General) v. PHS Community Services Society 2011 SCC 44);
- The obligation of witness police officers to complete their duty notes in civilian police oversight investigations without the participation of counsel (Schaeffer v. Wood 2013 SCC 71);
- Jury secrecy and when jury verdicts may be set aside for reasonable apprehension of bias (R. v. Budai 2001 BCCA 349, application for leave to appeal dismissed);
- Refugee protection and human smuggling (R. v. Appulonappa 2015 SCC 59 and B010 v. Canada (Citizenship and Immigration) 2015 SCC 58);
- The constitutionality of mandatory minimum sentences for drug trafficking (R. v. Lloyd 2016 SCC 13 (Factum Only)); and
- The right to financial assistance to make full answer and defence (R. v. Ho 2003 BCCA 663, application for leave to appeal dismissed).
Andrew served as Associate Commission Counsel for the second phase of the Davies Commission of Inquiry into the death of Frank Paul, which examined the Crown's charging decisions arising out of the in-custody death of Mr. Paul, a homeless Aboriginal man. The Davies Commission report, together with the Braidwood Commission, led to the creation of the Independent Investigations Office (B.C.) to conduct criminal investigations where police are suspected of involvement in incidents resulting in death or serious harm. Andrew was also co-counsel for a witness at the Missing Women Commission of Inquiry.
Andrew has appeared before all levels of court, including the Supreme Court of Canada. He has also appeared before the B.C. Securities Commission, other administrative tribunals and as counsel in commercial arbitrations. He has lectured and written on directors’ and officers' liability, restitution, white collar crime, civil litigation, advocacy and legal ethics. Since 2004, Andrew has taught civil procedure as an adjunct professor at the Faculty of Law at the University of British Columbia.